On May 31, a group of major industry trade associations sued the FCC to block the recently enacted net neutrality rules. Petitions were filed in the U.S. Court of Appeals in the D.C. Circuit, Fifth Circuit, Sixth Circuit, and Eleventh Circuit. On the same day, a group of trade associations, including NCTA–The Internet and Television Association, CTIA, USTelecom, ACA Connects, WISPA, and others, petitioned the FCC asking for a stay of the order.
On June 7 the FCC refused to stay it’s order. The order will go into effect on July 22 unless it’s put on hold by an Appeals Court.
The case has been assigned to the Sixth Circuit Court of Appeals, using what is described as a random process. The tactic of suing a federal agency like the FCC in multiple jurisdictions is a form of judge shopping, where the carrier associations are hoping to end up in an appeals court where they think they have a better chance to win. The FCC also petitioned the Sixth Circuit Court of Appeals on June 7, and asked for a change of venue to the D.C. Circuit – which is the Court that has heard all of the earlier versions of the net neutrality issue. Historically, it has been normal for the D.C. Circuit Court to hear cases related to federal agencies.
Carriers are banking their case on the recently popular major-questions doctrine. This is a legal argument that bars federal agencies from resolving questions of vast economic and political significance without clear statutory authorization. This has been used in recent cases like West Virginia v. EPA that limited the extent to which the EPA could regulate greenhouse gas emissions in the state. The Supreme Court said the EPA went too far past its Congressional mandate in its attempt to regulate power plant emissions.
For the last forty years, the courts have given deference to decisions made by federal agencies, using a ruling in the 1984 Chevron v. National Resources Defense Council case that said that regulatory agencies have the right to regulate based upon the general mandate to regulate given by Congress.
There has been a tug of war between regulators and regulated industries since regulatory agencies were created. Courts have sometimes ruled that regulators have gone too far, such as happened in the case of Brown & Williamson v. FDA where the FDA tried to halt the sale of tobacco and nicotine products to minors, and where the Supreme Court struck down the attempt.
The carrier lawsuits also regurgitate the arguments made in earlier net neutrality cases that say the FCC doesn’t have the authority to impose Title II regulations, which is what enables net neutrality. Courts have ruled several times on the ability of the FCC to declare broadband as a Title II service. Interestingly, courts relied on the same argument to say that the Ajit Pai FCC had the authority to decide that broadband is a Title I information service. The Courts basically said that the FCC has the authority to regulate this kind of question based on the law that created the agency.
It will be interesting to see if the case gets remanded to the D.C. Circuit Court. The FCC makes a strong argument that the D.C. Court has a long history of wrangling with the complexities of FCC regulation, which will mean a more efficient process. Another court will have to catch up and understand the long history of wrangling between the FCC and ISPs.
We’ll also have to see if a Court puts any or all of the net neutrality order on hold during the appeal process. In the lawsuit challenging the first net neutrality order, the Courts put much, but not all of the order on hold. A Court will have to act quickly to make this decision by July 22.